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County Court advocate is a ‘worker’, says employment tribunal

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Ruling could give rights to hundreds of law grads working as unqualified advocates

A law graduate acting as a County County advocate was a “worker” for the purposes of employment law, a judge has found.

LPC Law, which arranges for lawyer hopefuls to argue minor cases under its supervision, had argued that its advocates were independent contractors.

But a judge sitting at East London Hearing Centre ruled against the firm, potentially expanding employment rights to hundreds of advocates if the judgment is followed in future cases.

LPC Law says it will appeal.

The tribunal heard that the firm, founded in 1994, works with some 260 advocates. Most have passed the Legal Practice Course or Bar Professional Training Course, but haven’t landed a training contract or pupillage, and want some experience to help them do so.

Despite being unqualified, they are allowed to argue at hearings (typically in the County Court) provided they are under the instruction and supervision of an “authorised person”.

One of these advocates was the claimant, a Ms Agada, who had a first class law degree from the University of Hertfordshire and a “very competent” in her BPTC.

She attended court hearings for LPC Law clients between March and December 2018, but wasn’t used after that. In August 2019, she sued for various breaches of employment law, alleging discrimination because of pregnancy and maternity leave among other things.

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To get the claim off the ground, the tribunal first had to decide whether she was a “worker” for the purposes of employment law. LPC Law contended that she wasn’t, and was instead running a freelance advocacy business of which LPC was merely a client or customer.

The firm pointed to a previous decision of a different employment judge dealing with the exact same set-up. In 2014, employment judge Wade had decided that another advocate working for LPC Law was “neither an employee nor a worker”.

But employment judge Crosfill went his own way, saying that the case law had moved on since then.

He relied in particular on the Supreme Court’s recent decision in the Uber case , where it held that drivers using the ubiquitous app were workers.

As with Uber, the fact that LPC Law’s contract with Agada said she wasn’t a worker didn’t matter: “I need to look at the reality of the situation as I have found it”.

Similarly, that Agada was free to work for other firms operating the same business model didn’t necessarily mean she was a proper freelancer. “In Uber BV v Aslam and others it was recognised that the drivers were free to use any of the rival taxi Apps. This was not fatal to their claim to worker status”.

Crosfill also found that Agada was paid standardised fees and had no scope to “build a business on the back of any personal relationship”. In general, given the oversight and training involved, “the level of supervision was such that the Respondent had a high degree of control over the Claimant”.

Looking at the relationship in the round, the judge ultimately held that LPC Law wasn’t a “customer or client of the Claimant. Accordingly, I find that the Claimant was a worker”.

LPC Law told Legal Cheek:

“This decision is a finding at a preliminary hearing and part of ongoing legal proceedings which, following legal advice from Counsel, LPC Law intends to appeal.

Employment Judge Crosfill strongly approved of the way LPC Law operates its business, which for over 25 years has given many Legal Practice Course and Bar Course graduates invaluable experience that many later credit as key to them obtaining pupillage, a training contract or even a seat on the bench.

LPC Law considers that the barristers, solicitors and advocates it instructs are independent contractors and treats them accordingly. They are free to work for others, including competitors, and many do so whilst taking instructions from LPC Law. This is industry standard.”

An appeal could trigger a judgment from the Employment Appeal Tribunal, which would be much more authoritative than this ruling.

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24 Comments

YOU Get Rights……And YOU Get Rights…!

This part of the judgement stands out for me – “…the level of supervision was such that the Respondent had a high degree of control over the Claimant”

It’s not like FRU where the ‘legal training’ is one single Saturday afternoon lecture by a barrister on the basics of Unfair Dismissal.

LPC Law have a brand and seem here to be carefully watching what their advocates were doing, partially so as to protect their reputation.

I wonder what LPC Law’s cut is of the advocate’s fees? It’s certainly a fascinating area of law.

Anonymous

LPC take about half of the advocates fee that is charged to the client.

Anon

There is a certain amount of irony that an organisation that is arguably looking to do the “right thing”, by helping law graduates gain work experience and giving those who attend court legal representation also looks inter alia to avoid paying National Insurance contributions by classifying these people as independent contractors.

Archibald Pomp O'City

Why? Where is the irony? Why is it remarkable that a company who tries to do the right thing in one area might opt for a more morally wayward approach in the execution?

hehe permanent username so people know im funny

NIC gets them a pension – are you deliberately this dim?

Anon

“LPC Law has given many Legal Practice Course and Bar Course graduates invaluable experience that many later credit as key to them obtaining … a seat on the bench”

Has anyone actually become a judge based on working for LPC as a BPTC or LPC grad? Surely it is their 5 plus years of experience as a qualified lawyer which is key to them becoming even a deputy district judge. What a weird attempt at a boast by LPC

Preach

It’s the same as the people who try to launder a 2:2 degree by doing 30 FRU cases.

Absolutely no amount of advocacy experience, voluntary work or self-promotion (whilst spending your 20s living on your overdraft) is going to help you get pupillage now if you don’t have excellent academics.

Ipso Facto

That’s not 100% true. I have heard of people getting pupillage with 2:2s after showing that kind of dedication. But they are generally the exception rather than the norm and I agree with you in that it would cut such applicants off from the vast vast majority of chambers.

Judgey McJudgeface

I got a 2:2 in 2008. Worked for a similar set us as LPC for 7 years. Now I sit as an Employment Judge (I’m not this judge though!) so it’s doable.

LPC Law 2:2 drop out

Or their dads own the chambers’ building…

Just Anonymous

“12. The invoices provided by the Claimant were so heavily redacted as to be
meaningless. She would or should have recognised that. The reasons for ordering
disclosure had been explained by EJ Gardiner and EJ Lewis. The failure to comply
fully with those orders would have been unimpressive from a person with no legal
training

17. Ms Prince in her submissions suggested that much of the Claimant’s evidence
was not credible. Before making specific findings, I make the following observations.
When giving evidence the Claimant frequently adopted the role of an advocate rather
than giving evidence of fact. She was reluctant to make any concessions even where it
was clear that she needed to. In contrast Leonard Crowder resisted any temptation to
argue the Respondent’s position from the witness box and gave straightforward answers to the questions put to him.

40….This does not support the Claimant’s position that she was unable to
refuse work. It is quite obvious that the Claimant is being asked whether she could
possibly assist rather than being told that she must undertake work. In her witness
statement she said that when she returned from her honeymoon, she was not
allocated any work as punishment. Ms Prince challenge that in cross examination
and took the Claimant to a record of the hearing is that she had been allocated. That
clearly showed that the Claimant was allocated a hearing on her first day back at
work and a full week of hearings shortly after her return. There is no evidence to
corroborate the Claimants suggestion that she was punished for refusing these
hearings.”

Ouch, ouch and ouch.

6 year PQE

I will be very interested to see whether the actual substantive issues of the claim will go very far in terms of discrimination because of pregnancy and maternity leave (among other things) when considering the comments made above.

Anonymous

For the advocates to legally appear in court they need to have a high degree of supervision. Either LPC don’t do that, in which case the advocates are committing an offence and LPC are abetting them; or they do receive that level of supervision which almost certainly points towards worker status. When you then consider that LPC set the fees, provide the PII and pick the replacement themselves should you be unable to make a hearing I struggle to see how they hope to win this preliminary point.

They may well win the overall case, but in the long-term it may have been cheaper for them to have settled this one pre-issue

Anonymous

Hate to break it to you but Katie left some time ago.

X

Known as

Desmond 2:2.

Not an English Lawyer

How much do these advocates typically charge? Presumably they must have professional indemnity insurance too?

Qualified Advocate

I am a self employed lawyer and I work as an advocate through an LPC style set up (I don’t have the right of audience issue). I absolutely do not want to be classed as a worker. I want the freedom to be able to do things like reject work. If the provider wants to stop giving me work, i’ll go to another one as there are plenty about.

It’s a two way street, the moment advocates start getting workers rights, the moment the advocacy provider can start to ask or require me to do certain things it restricts my flexibility (unless I can opt out from it).

However I suppose I could opt out because I have the right of audience and to conduct litigation within SRA regulated law firm – where as the unqualified advocate may not have such an option given the potential issues with schedule 3 of the Legal Services Act 2007

Barrister

If you wanted that sort of freedom, then you should have gone to the Bar.

Another barrister

Yeah, though I wish I had the ‘freedom to reject work’ too

Qualified Advocate

I prefer litigation more than advocacy. I accept I could have been Counsel with right to conduct litigation and still have tenancy in chambers.

Simply Unstoppable Long Life Learner (not real name)

Hold fire on 2:2 versus 1 & 2:1 myths. Nothing beat experience! If you stop learning and practising even with 1 or 2:1, the curtains will be drawn on your legal career. With a 2:2 combined with ongoing practice and learning, you’ll be head and shoulders above the crowd. I’m a leaving example – from litigant-in-person/Mcz Friend post LLB (2:2) & during LPC, just over one year as a Legal Caseworker in a small high street firm (self-employed consultant), followed by an 18 month -litigation, advocacy, audiences in the lower courts and first-tier tribunals and generating retainers! Hence, No! No!! to employee and/or worker status and infinite Yes!… to self-employed consultant solicitor. Next learning & development journey is Higher Rights (Crim and Civ) training towards ‘Solicitor & Advocate’. All genders of the 2:2 versus 1 and 2:1 jury, your legal career is what you can (“Yes, you can!”) make of it. This is my submission, as I waive la la la la … goodbye to PAYE and associated headhunters. If I can with a 2:2 from Birkbeck, University of London, you can!

Simply Unstoppable Life Long Learner

Self-correction: ‘… I am a living example…’, instead of ‘… I am a leaving example …’. There you go – always review your case prep to avoid surprises on the floor of court theatre.

Simply Unstoppable Life Long Learner

Self-correction: ‘… I am a living example…’, instead of ‘… I am a leaving example …’. There you go – always review your case prep to avoid surprises on the floor of court theatre.

Anonymous Neutral Evaluator

Great stuff, “Simply Unstoppable Long Life Learner.” It appears that all genders of 2.2 versus 1 and 2.1 jury have indeed accepted your excellent and professionally inspiring comments, stopped 2.2 bashing instead of running their own career race, and hopefully, forever hold their peace individually. Well done and your deserve more than a Five ⭐️ rating and very likely to excel in legal practice.

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